FEDERAL COURT OF AUSTRALIA

Jingle on behalf of the Jaru People #2 v State of Western Australia [2022] FCA 1511

ORDERS

THE COURT NOTES THAT:

A.    Pursuant to section 87(1)(b) of the Native Title Act 1993 (Cth) the parties have filed with the Court the attached Minute of Consent Determination of Native Title which reflects the terms of an agreement reached by the parties in relation to these proceedings.

B.    The terms of the agreement involve the making of consent orders for a determination of native title in relation to the land and waters the subject of this proceeding pursuant to section 87(2) and 94A of the Native Title Act 1993 (Cth).

C.    The persons who are the Applicant have indicated that they intend to have the native title rights and interests held in trust and have nominated the Jaru Aboriginal Corporation RNTBC (ICN 9512) as the prescribed body corporate to be the trustee of the native title rights and interests.

D.    The Jaru Aboriginal Corporation RNTBC (ICN 9512) has consented in writing to hold the rights and interest comprising native title in trust for the native title holders.

THE COURT ORDERS BY CONSENT THAT:

1.    It is satisfied that an order in the terms proposed in the attached Minute of Consent Determination of Native Title is within the power of the Court and is appropriate to be made pursuant to section 87 of the Native Title Act 1993 (Cth).

2.    There be a determination of native title in the terms of the Minute of Consent Determination of Native Title attached.

3.    The Jaru Aboriginal Corporation RNTBC (ICN 9512) shall hold the determined native title in trust for the native title holders pursuant to section 56(2)(b) of the Native Title Act 1993 (Cth).

4.    There be no order as to costs

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ATTACHMENT "A"

DETERMINATION

THE COURT ORDERS, DECLARES AND DETERMINES THAT:

Existence of native title (s225)

1.    The Determination Area is the land and waters described in Schedule 1 and depicted on the map comprising Schedule 2.

2.    Native title exists in the Determination Area.

Native title holders (s225(a))

3.    The native title in the Determination Area is held by the Jaru people. The Jaru people are the people referred to in Schedule 4.

The nature and extent of native title rights and interests (s225(b)) and exclusiveness of native title (s225(e))

Exclusive native title rights and interests

4.    Subject to paragraphs 5, 6 and 7 the nature and extent of the native title rights and interests in relation to the Determination Area referred to in Schedule 3 (being areas where any extinguishment must be disregarded) is the right to possession, occupation, use and enjoyment of the Determination Area as against the whole world.

5.    Notwithstanding anything in this Determination there are no native title rights and interests in the Determination Area in or in relation to:

(a)    minerals as defined in the Mining Act 1904 (WA) (repealed) and the Mining Act 1978 (WA);

(b)    petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and the Petroleum and Geothermal Energy Resources Act 1967 (WA); or

(c)    geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA);

except the right to take and use ochre to the extent that ochre is not a mineral pursuant to the Mining Act 1904 (WA).

6.    Native title rights and interests are subject to and exercisable in accordance with:

(a)    the laws of the State and the Commonwealth, including the common law; and

(b)    the traditional laws and customs of the native title holders.

7.    For the avoidance of doubt, the nature and extent of native title rights and interests in relation to water in any watercourse, wetland or underground water source as defined in the Rights in Water and Irrigation Act 1914 (WA) as at the date of this determination is the non-exclusive right to take, use and enjoy that water.

s47B of the Native Title Act applies to the Determination Area

8.    Section 47B of the Native Title Act applies to disregard any prior extinguishment in relation to the Determination Area.

The nature and extent of any other interests

9.    The nature and extent of other rights and interests in relation to the Determination Area are those set out in Schedule 5.

Relationship between native title rights and other interests

10.    The relationship between the native title rights and interests described in paragraph 4 and the other interests is as follows.

(a)    The determination does not affect the validity of those other interests;

(b)    to the extent of any inconsistency between the other interests and the native title rights and interests, the native title rights and interests continue to exist in their entirety, but the native title rights and interests have no effect in relation to the other interests to the extent of the inconsistency during the currency of the other interests; and

(c)    otherwise the other interests co-exist with the native title rights and interests. To avoid doubt, existence and exercise of native title rights and interests do not prevent the doing of any activity required or permitted to be done by or under the other rights and interests, and the doing of an activity required or permitted under those other interests prevails over the native title rights and interests and their exercise, but does not extinguish them.

Definitions and interpretation

11.    In this Determination, unless the contrary intention appears:

12.    In the event of any inconsistency between the written description of an area in Schedule 1 or Schedule 3 and the area as depicted on the map at Schedule 2, the written description prevails.

SCHEDULE 1

DETERMINATION AREA

The Determination Area, generally shown as bordered in blue on the map at Schedule 2, comprises all that land and waters bounded by the following description:

All that land comprising Unallocated Crown Land (formally Reserve 18124) being Lot 350 as shown on Deposited Plan 75846.

Note:    All referenced Deposited Plans and Diagrams are held by the Western Australian Land Information Authority, trading as Landgate.

   Datum:    Geocentric Datum of Australia 2020 (GDA2020)

   Prepared By:    Graphic Services (Landgate) 21st October 2022

Use of Coordinates:

Where coordinates are used within the description to represent cadastral or topographical boundaries or the intersection with such, they are intended as a guide only. As an outcome to the custodians of cadastral and topographic data continuously recalculating the geographic position of their data based on improved survey and data maintenance procedures, it is not possible to accurately define such a position other than by detailed ground survey.

SCHEDULE 2 – MAP OF THE DETERMINATION AREA

SCHEDULE 3

EXCLUSIVE NATIVE TITLE AREAS

Areas where native title comprises the rights set out in paragraph 4

The following land and waters (generally shown as green on the maps at Schedule 2):

Lot 350 on Deposited Plan 75846.

SCHEDULE 4

DESCRIPTION OF THE NATIVE TITLE HOLDERS

1.    The native title holders are those Aboriginal people who:

(a)    are related through filiation (meaning a series of parent-child relationships, including by adoption) to one of the Apical Ancestors who held rights and interests in one of the local estate countries comprising the Determination Area; or

(b)    are affiliated to an Apical Ancestor and who have spirit conception and/or birth sites in one of the local estate countries in the Determination Area; or

(c)    are recognised by the persons described above as:

(i)    holding rights and responsibilities for certain songs and ceremonies which make reference to important sites in the Determination Area; or

(ii)    holding rights and interests in one of the local estate countries in the Determination Area under traditional law and custom.

2.    The Apical Ancestors are:

SCHEDULE 5

OTHER INTERESTS

1.    Existing Interests under the Mining Act 1978 (WA)

2.    Other Rights and Interests

(a)    Rights and interests, including licences and permits, granted by the Crown in right of the Commonwealth or the State pursuant to statute or otherwise in the exercise of its executive power and under any regulations made pursuant to such legislation.

(b)    Rights or interests held by reason of the force and operation of the laws of the State or of the Commonwealth including the force and operation of the Rights in Water and Irrigation Act 1914 (WA).

(c)    The right to access land by an employee or agent or instrumentality of:

(i)    the State;

(ii)    the Commonwealth; or

(iii)    any local Government authority;

as required in the performance of his or her statutory or common law duties where such access would be permitted to private land.

REASONS FOR JUDGMENT

MORTIMER J:

1    On 17 December 2021, Elizabeth Jingle, Rosemary Carey, Frank Sampi, Margaret Rogers and Lena Carey (jointly, the applicant) filed an application for a determination that native title exists in a parcel of unallocated crown land in Western Australia’s East Kimberley region identified as Lot 350 on Deposited Plan 75846 (the determination area). This application, which is known as the Jaru #2 application, followed determinations of native title made by this Court in relation to much larger areas surrounding the determination area: see Sturt on behalf of the Jaru Native Title Claim v State of Western Australia [2018] FCA 1923. In places in these reasons, I also refer to the determination in Sturt as Jaru #1.

2    In Sturt, the Court made a determination under s 87A of the Native Title Act 1993 (Cth) over an area of more than 25,000 square kilometres, mostly to the south and east of Halls Creek, but including some areas to the north east of Halls Creek as well. The determination covered areas known by reference to pastoral lease names such as Nicholson, Gordon Downs, Flora Valley, Sturt Creek, Kirby Plains and Margaret River. In the south west was a large area covered by the Lamboo pastoral lease. The area subject to the Jaru #2 application covers part of Lamboo. At [7] in Sturt, the Court said:

There are two areas which are claimed in the Jaru application but are to be excluded from the Determination Area. One (Reserve 28538, south of Duncan Road as it departs from Halls Creek) is to be excluded entirely and no further claim by Jaru people will be made. The other (Reserve 18124, within the Lamboo Downs pastoral lease) will be subject to a separate application for a determination of native title, relying on s 47B of the Native Title Act once the Reserve is cancelled and the area reverts to unallocated Crown land.

(Emphasis added.)

3    Reserve 18124 subsequently expired and, by the Jaru #2 application, the applicant seeks to give effect to the parties’ intention for this parcel in Sturt. The native title common law holders recognised in Sturt are described by reference to the same list of apical ancestors as the claim group for the Jaru #2 application. The determination area comprises approximately 140 square kilometres. The sole respondent to the Jaru #2 application, the State of Western Australia, has reached an agreement with the applicant for the purposes of s 87 of the NTA to enable the Court to make a determination that native title exists without the need for a hearing of the application.

4    For the reasons that follow, the Court is satisfied that it can and should make a determination of native title in the terms proposed by the parties for the purposes of s 87 of the NTA.

Material relied upon

5    The parties have executed and filed a minute of proposed orders to provide for a determination of native title, with joint written submissions in support of that minute. In their submissions, the parties rely on an affidavit of Justine Mary Toohey affirmed on 21 November 2018 and an affidavit of Miranda Jane Clark affirmed on 8 June 2021, as well as a written nomination of Jaru Aboriginal Corporation (ICN 9512) to be the prescribed body corporate and trustee of the native title rights and interests of the claim group and the JAC’s written consent to that nomination.

6    In their submissions, the parties outline the material that the applicant has provided to the State in support of the claimants’ connection to, and occupation of, the determination area. This material included a 2017 report of Dr Anthony Redmond and a 2018 statement of Robin Yeeda, which had both been provided to the State in support of the determination in Sturt. The remainder of the material the applicant provided the State to prove connection and occupation comprised:

(a)    an affidavit of Rossie Ryder affirmed 13 October 2020;

(b)    an affidavit of Eddie Yaloot affirmed 21 October 2020; and

(c)    an affidavit of Darrylin Gordon affirmed 7 September 2022.

7    These affidavits were not filed with the Court, but are referred to in the parties’ joint written submissions.

8    Much of the Court’s description in Sturt at [58]-[77] of the Jaru People, their traditional law and custom, their country and their connection to it, also applies to the Jaru #2 determination area. I am satisfied the same approach can be taken to the determination area.

9    As part of satisfying the State about the occupation criteria for the purposes of s 47B of the NTA, the Jaru #2 applicant relied on Ms Gordon’s 2022 affidavit in particular. Ms Gordon is a member of the Jaru #2 claim group. She is the current manager of the Lamboo pastoral lease, and lives at the Lamboo station homestead. The Lamboo pastoral lease is held by the Ngunjiwirri Aboriginal Corporation. Ms Gordon and her family have ensured that grave sites on the determination area are protected and looked after, and they often visit the land to care for it and to swim in waterholes located on it. They welcome people on to the determination area, so that visitors do not have sleepless nights when staying there. Jaru Elder Mr J Ryder, who has passed away, described the importance of members of the Jaru community having purchased Lamboo:

I can sing those Dreamings like Lingga (snake). It comes from Noonkanbah way to Gariny, where I was born, and then on to Buga on Ruby Plains. We have to live here and take care of those places on Lamboo. That’s why we bought the station, and that’s why people for this country own the lease, and that’s why we built up Ngujuwirri Community near Mt Dockrell.

10    The parties submit that the State is satisfied that the material it has received establishes a credible basis for the claimants’ occupation of the determination area for the purposes of s 47B of the NTA. I accept that submission.

Section 87

11    Section 87 of the NTA provides that the Court may make a determination of native title by consent without holding a hearing where:

(a)    after the period specified in the notice given under NTA s 66 has ended, the relevant parties execute and file an agreement in writing to propose orders for a determination of the proceeding (NTA s 87(1)(a), (aa) and (b));

(b)    the Court is satisfied that the orders proposed are “within the power of the Court” to make (NTA s 87(1)(c)); and

(c)    the Court is satisfied that the orders proposed are appropriate (NTA s 87(1A)).

See Freddie v Northern Territory [2017] FCA 867 at [12]-[14].

Section 87(1)

12    Ms Toohey’s affidavit deposes to the meeting of the Jaru native title claim group on 21 and 22 August 2018, which dealt with the authorisation of the Jaru #1 determination. However, that meeting also dealt with the authorisation of the Jaru #2 application, and the claim group’s authorisation for the Jaru #2 applicant to agree to a consent determination in relation to what was previously Reserve 18124: see Ms Toohey’s affidavit at [40]. The Jaru #2 application was supported by an affidavit of each of the members of the applicant deposing to their authorisation to make the application.

13    After its filing on 17 December 2021, the Native Title Registrar gave notice of the Jaru # 2 application pursuant to s 66 of the NTA on 1 June 2022. The period of three months after the notification day referred to in s 66(8) and s 66(10)(c) of the NTA ended on 31 August 2022.

14    On 28 October 2022, the State filed a minute of consent determination of native title agreed between the parties for the purposes of s 87(1)(b) of the NTA, signed on behalf of the applicant and the State.

15    I am satisfied that the requirements of s 87(1)(a), (aa)(i), and (b) are met.

16    In terms of whether the proposed order is within the power of the Court (s 87(1)(c)), it is necessary in this case to refer to the terms of s 67 and s 68 of the NTA. The Jaru #2 application covers an area also covered by the Jaru #1 application, although excised from the Jaru #1 determination. The remainder of the claim area in Jaru #1 having been determined or dismissed in Sturt, Reserve 18124, now Lot 350 on Deposited Plan 75846, is the only part of Jaru #1 that remains to be determined in that proceeding.

17    Section 67 of the NTA requires the Court to ensure overlapping claims are dealt with in the same proceeding, and s 68 provides that, subject to certain exceptions not presently relevant, there can only be one determination of native title over an area.

18    The parties have sought to achieve compliance with these provisions by filing, at the same time as the proposed s 87 orders were filed, a minute of orders proposed to be made by consent in Jaru #1 (WAD 42 of 2019), dismissing the remainder of that proceeding immediately before the making of any determination on the Jaru #2 application. The proposed orders in Jaru #1 were entered as orders of this Court on the date of this judgment and immediately prior to the making of the Jaru #2 determination.

19    Thus, the determination area is not subject to any other application for a determination of native title, nor is it the subject of a previously approved determination of native title.

20    Finally, I am satisfied that the proposed s 87 orders set out the details of the matters required by s 94A and s 225 of the NTA, and concern rights and interests which the Australian common law can recognise.

21    I am therefore satisfied the requirements of s 87(1)(c) are met.

Section 87(1A)

22    As the parties correctly submit, what indicia suffice to satisfy the Court of the appropriateness of a proposed determination depends on the circumstances of each case. Practices about what material is filed and what is not vary between States, and it is probably fair to say that practices about what material should be filed have also modified over time. A proposed s 87 determination may or may not involve the resolution of overlapping claims or boundaries with neighbouring groups, or disputes about group descriptions. Whether such issues are involved may affect what the Court requires in order to consider a determination is appropriate. In circumstances where what are being recognised are rights in rem, the filing of connection material provides a transparent and accessible basis to understand why native title to a particular area has been recognised. It may also assist in the resolution of other claimant applications, and compensation applications. The parties may themselves wish to have connection material on the Court’s record. It may, for example, make future access requests by common law holders, or prescribed bodies corporate, easier to deal with. These considerations are not exhaustive, but they indicate why the assessment of whether a s 87 agreement, and proposed s 87 orders, are appropriate may be highly fact dependent.

23    It is certainly the case that it may be appropriate for the Court to make a consent determination without receiving any evidence of the primary facts that substantiate native title if the Court is satisfied that the parties have reached a free and informed agreement: see Ward v State of Western Australia [2006] FCA 1848 at [8]; Hughes (on behalf of the Eastern Guruma People) v Western Australia [2007] FCA 365 at [9]; Owens on behalf of the Tagalaka People v Queensland [2012] FCA 1396 at [14]-[16]. That is because the fundamental premise of s 87 is the agreement of the parties that native title should be recognised, rather than any assessment by the Court, on admissible evidence, of that matter. Section 87 gives effect to the NTA’s emphasis on mediation and negotiated outcomes in s 61 applications. Those negotiations may be straightforward, or they may be complex. The NTA prioritises agreement making as a pathway to native title outcomes and the Court’s approach to appropriateness needs to recognise this.

24    In other cases, at least some connection material may need to be filed, or more detailed evidence as to the authorisation of the native title applicant to enter into the s 87 agreement, or evidence about particular aspects of the orders sought. It is not possible to be prescriptive.

25    Appropriateness also involves the Court’s acknowledgment of the position adopted by a State party. Where a State party is satisfied that there is a credible or cogent basis to accept that the requirements of s 223 of the NTA are satisfied, then this factor is of significant weight in the Court’s consideration of whether the proposed determination is appropriate: see Munn for and on behalf of the Gunggarri People v State of Queensland [2001] FCA 1229; 115 FCR 109 at [29]-[30]; Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [37]; Western Bundjalung People v Attorney-General of New South Wales [2017] FCA 992 at [20]-[21]; Freddie at [21].

26    In this proceeding, as the only respondent in this proceeding and an active party in Jaru #1, the State has played a key role in the negotiation of the consent determination. The submissions recognise the State’s acceptance of a credible basis for an ongoing connection by the Jaru People to the determination area according to traditional laws and customs, and a credible basis for occupation of the determination area for the purposes of s 47B of the NTA. The State has also searched the registers of various other interests and is satisfied that they are sufficiently recognised in Schedule 5 of the determination.

27    The Court is satisfied it is appropriate to make the determination of native title sought by the parties.

Nomination of a prescribed body corporate

28    In her affidavit, Ms Clark deposes to the decision of the Jaru claim group at a meeting on 31 March 2021 to nominate the JAC to hold the native rights and interests for the Jaru #2 application’s claim area. The nomination and written consent of the JAC referred to at [5] above were provided in response to the Court’s request in the orders of McGregor JR dated 1 September 2022.

29    The terms of s 56(2)(a) of the NTA being met, in accordance with s 56(2)(b) of the NTA the Court will determine in its orders that the JAC holds native title in the Jaru #2 determination area in trust for the common law holders.

Conclusion

30    This determination completes what has been a long journey for the Jaru People. The cancellation of Reserve 18124 and its reversion to unallocated Crown land has enabled a significant and large piece of Jaru country to finally be recognised under the NTA. The parties’ submissions acknowledge that the country covered by Lamboo is very important, including as a place where Jaru ancestors rest. Mr Rossie Ryder says:

… south of Ngunjiwirri, my father’s father is laying down there. He laying down there by the creek…

Jack Ryder showed me this place. Our old people told the whitefellas that’s sacred there, we got a grave there. They are the bones from the old people, long time ago. When we go there, we talk to the old people and say hello. We can see the spirits there, we can feel them.

That’s why we feel careful about that part.

31    Recognition under the NTA does not alter or affect at all the significance of the determination area to Jaru People; that significance comes from a time many thousands of years ago, which has endured despite the ravages of colonisation.

32    However, recognition does enable native title rights to be exercised in accordance with Australian law over this area. The Court’s orders bring some certainty and security to the rights and interests the Jaru People have always held over Lamboo. The Jaru #2 claim group members, members of the Jaru #2 applicant and the State are to be congratulated on the resolution effected by the Court’s orders today. The parties have been well served by their legal representatives, and by the assistance over a very long period of time of dedicated experts and staff within the Kimberley Land Council, and within the State. In particular the Court acknowledges the dedicated work of Dr Tony Redmond on the Jaru claims over a very long period of time. Finally, the Court acknowledges all the Jaru elders whose traditional knowledge, persistence and courage have sustained the Jaru claimants in the long and difficult processes under the NTA, and made recognition under the NTA a reality.

Associate:

Dated:    15 December 2022

SCHEDULE OF PARTIES